Lau Ting Hang and Another v. Leung Chi Wing

DCCJ 6539/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6539 OF 2005

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BETWEEN

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Coram : His Hon Judge Leung in Court

Date of hearing : 19-20 November 2007

Date of handing down judgment : 18 February 2008

JUDGMENT

1.This is a suspected water seepage case involving 2 units of a multi-storey building in Kwai Chung, New Territories.  Leung (the Defendant) is the owner of unit 2404 while the Lau’s (the 1^st Plaintiff and his wife, the 2^nd Plaintiff) are the owners of unit 2304 immediately under Leung’s unit.  At the end of 2005, the Lau’s commenced the present action for injunction and damages against Leung.  Leung used to have legal representation until March 2007.

BACKGROUND

2.The Lau’s have been residing at 2304 since 2002.  They first discovered signs of suspected water seepage in late 2004.  The suspected seepage had since persisted.  It spread in the large bedroom over the ceiling and to the wall, resulting in mould and odour.  Water was later found dripping on top of the multi-circuit board (MCB) and the curved ceiling box feature above the pantry of the open kitchen.  To prevent the dripping water from causing power short circuit, the technician subsequently sent by the manager (MTR Property Management) to 2304 had to improvise a mechanism by fixing a device above the MCB to collect and to lead the water into a plastic container.  The water thus collected had to be poured from the container about 3 times a day.  Cracks and peeling paint also developed on the surface of the ceiling box feature.  Stains developed over the ceiling and the walls above the front door, dining area and the small bedroom.  Wallpaper peeled off.  Inside the bathroom, water was also found dripping from the tiled ceiling.

3.The Lau’s with their new born baby temporarily moved out of 2304 during the period between November and later December 2005.  When they returned, they discovered that the suspected water seepage still persisted.  This action was then commenced.  By early 2006, parts of the wallpaper inside the large bedroom of 2304 were so spoiled that they had to be torn off.  Plaster and concrete began to detach and thus exposing the steel reinforcements.

4.Lau and Kong of the manager gave evidence of their observation to the above effect.  The photographs taken by them in March, October and November 2005 as well as January and March 2006 also depict the condition of the various parts of 2304 so affected.  I find the abovementioned condition of 2304 to be the fact.

ISSUES

5.The major issues for determination are as follows:

(1)	Whether the condition inside 2304 was caused by water seepage from 2404.
(2)	If yes, whether Leung is liable for the seepage.
(3)	What loss and damage the Lau’s have suffered as a result and what remedies they are entitled to.

INVESTIGATION

6.Since 2005, various bodies had investigated into the cause of the condition inside 2304.  The results were recorded in the correspondence at the time.

7.In April 2005, the manager arranged its contractor to conduct a flooding test to the drainage of the shower tray inside the bathroom of 2404.  No seepage from the drainage of 2404 as a result of the test was proved.  Another test to check the water pressure in the potable (fresh) water pipes of 2404 was attempted but could not be completed.

8.In November 2005, the manager sent a surveyor to inspect 2304.  Suspected seepage from the potable water pipes of 2404 was reported.  Scaffolds were also erected on the external wall outside the bathroom of 2304.  Signs of suspected water seepage was observed on the external wall of the bathroom of 2404 above.  The manager again reported suspected seepage from the potable water pipes from 2404.

9.The complaint was also referred to the government departments.  In November 2005, the Food and Environmental Hygiene Department (FEHD) conducted a coloured-water test on the drainage of 2404.  In the absence of an affirmative proof of seepage from the drainage system, the case was referred to the Buildings Department (BD) and the Water Services Department (WSD) as well.  The departments started to handle the complaint through their joint office.  In March 2006, the WSD conducted a water flow test on the potable water pipes of 2404 but could not confirm beyond doubt whether there was leakage.  In the coloured-water test and flooding test conducted in 2404 in December 2006 and March 2007, the departments could not confirm seepage from the drainage system.

CAUSE OF THE CONDITION INSIDE 23A

10.With leave of the court, the statement of claim was served 8 months after the commencement of action.  The pleaded case of the Lau’s is that the condition of their unit was caused by leakage from the potable water pipe in the concrete floor slab of 2404 and seepage from the bathroom of 2404.  Leung denies that and suggests leakage from pipes or seepage from areas other than his unit.

11.The Lau’s relied on the evidence of Yung, who is a registered architect and an authorised person.  He has provided opinion, and has been accepted, as expert witness in numerous building and construction cases involving a broad range of issues and dispute.  His relevant expertise is not in dispute.  Yung first inspected 2304 in March 2006.  On that occasion, he was not able to gain entry to 2404.  This led to his report in July 2006.  He inspected 2304 again in February 2007.  This time he managed to inspect 2404 as well.  This led to his report in March 2007.

Drainage system and potable water piping

12.In his report in July 2006, Yung first confirmed that the condition of the affected parts in 2304 was consistent with damage by water seepage. He observed the aggregation of the defects around the spots of water dripping on the ceiling.  These indicated that the water came from the concrete floor slab separating 2304 and 2404.

13.Reference was made to the coloured-water test conducted by the FEHD inside the bathroom of 2404.  According to Yung and the explanatory information published by the joint office of the various departments, the ambit of the inspection and test by the FEHD would be to eradicate the source of nuisance being the drainage system.  Both Lau and Kong of the manager confirmed that no seepage was observed inside 2304 as a result of that test then.  This suggested the source of seepage was not the drainage of 2404.  Yung opined that the seepage should originate from a source of constant pressure such as potable water piping.

14.The potable water pipes in a typical unit of that building run from the main valve in the kitchen to the bathroom by embedment in the concrete floor slab.  The plumber plan subsequently obtained by Yung confirmed that.  According to Lau, Leung once revealed that such potable water piping in 2404 had been replaced.  In court, Leung confirmed that and said he supervised the replacement work before he moved in.  He himself is an estate engineer, possessing knowledge about water piping.  Yung suggested in his first report the possibility of leakage from such replaced potable water piping in the concrete floor slab of 2404.

15.During his inspection in February 2007, Yung observed that the condition of 2304 had worsened since his last inspection.  He confirmed that the locations of water dripping above the pantry and the large bedroom in 2304 were in close proximity to the potable water pipe running from the main valve in the kitchen to the bathroom of 2404 above.  This reinforced his opinion that this water pipe concealed in the concrete floor slab leaked and thus causing the seepage to 2304 below.

16.Yung did note the lack of affirmative conclusion of leakage from the potable water piping in 2404 despite the tests conducted by the manager and the government departments.  However he pointed out the limitation of those tests conducted.

17.All live potable water pipes are subject to constant internal water pressure, Yung explained.  This is also in line with the explanatory information published by the WSD.  However, the test to detect variation of such pressure in the water pipes in 2404 (and therefore possible leakage) arranged by the manager in 2005 could not be completed because of difficulty in shutting down the main valve completely.  This was recorded in the correspondence between the manager and Leung then.

18.Leung relied on the results of the water pressure tests conducted by a registered plumber he engaged in March and April 2006.  His unit was said to have passed the tests.  This, Leung suggested, showed no leakage from the potable water piping.  What Leung relied on is a one-sheet simple record of the test data with no explanation.  The plumber did not testify.  It is unclear how such test could be properly conducted if the main valve could not be shut down completely (as mentioned above by Kong in 2005).  In any event, Yung commented that while the pressure applied during the 2 tests, according to the record, was appropriate, the duration of the test was wholly inadequate to detect and to conclude if small seepage in fact existed.

19.According to their letter, the WSD conducted their test in 2006 by turning off all the water taps in 2404 and checking if the water meter still detected any water flow.  The WSD reported no water wastage after the test.  However Yung explained that to be effective, one would have needed to prolong the test for a substantial period of time before small seepage could be detected.  According to the letter from the WSD, the test was conducted for only 30 minutes.  While the WSD could not conclude beyond doubt whether there was leakage or not, the WSD still suggested a thorough inspection of all the water supply pipes in 2404.  By their further letter to 2404 in April 2006, the WSD actually explained that seepage could still have been caused by small leaks from the pipes, notwithstanding their test result.  But the identification of these small leaks had to be carried out by the owner of the property in question, i.e., 2404.  This, in my view, confirmed the opinion of Yung that the water flow check by the WSD in March 2006 was a limited test.  The fact was that WSD never ruled out small seepage from the potable water piping of 2404.

20.After the inspection in February 2007, Yung concluded that there was likely more than one source of water seepage.  He found the water dripping from the tiled ceiling of the bathroom in 2304 had worsened since his last inspection in 2006.  A slender stalactite about 30mm long had developed by the dripping from the tiled surface of the bathroom ceiling.  Inspecting the corresponding bathroom in 2404 above, Yung discovered that the original bathtub had been removed and replaced by a shower tray on a raised floor platform.  A wall tile had either detached or been removed, thus exposing the water supply pipe once concealed in the concrete wall.  Yung found no waterproofing layer beneath the tile finish.  By leaving the patch uncovered by tile and in the absence of waterproofing layer, water could be continually splashed into the gaps and crevices between the tiles and the concrete wall while the shower cubicle was being used.  This in turn would seep into cracks and cavities in the surrounding structure elements, eventually reappeared as water dripping from the ceiling of the bathroom in 2304.  The extensive wet stains uniquely on the floorboards in the large bedroom and defects at the base of the wall facing the living area in 2404, in his view, confirmed his opinion.

21.Flooding tests had been conducted in the bathroom of 2404.  According to the correspondence, the flooding test conducted by the manager in 2005 lasted for about 4 minutes.  In court, Kong confirmed that it lasted for not more than 10 minutes.  He admitted that from his experience, this was in fact shorter than the norm, which was 15 to 30 minutes.  But the understanding and co-operation of the owner and occupier of the unit being tested would be required before the test could be prolonged.  Yung confirmed in court that such duration of the test would not suffice for the purpose of the test.

22.In my judgment, the evidence pointing to the source of seepage from the potable water pipes in the concrete floor slab of 2404 and the gaps and cavities between the tiles and the concrete walls of the bathroom of 2404 was just compelling.

Seepage from the external wall

23.Seepage from the external wall into 2304 was in fact considered as a possibility.  As mentioned above, scaffolds had been erected to inspect the external wall of the bathrooms of 2304 and 2404.  The manager reported their suspicion that there was water seepage on the external wall.  Photographs were taken.  In court, Kong and Yung explained their observation that the relevant part of the external wall was wet with moss.  But there was no crystallisation which would have been expected if the water came from the flush water (which is saline) or the drainage system.  Yung further observed that the external wall surface was very irregular, almost like honeycomb.  He therefore did not rule out water seepage from 2404 to the external wall, instead of the other way round.

Seepage from other areas

24.The manager did consider the possibility of the source of seepage from other adjacent units than 2404 or other common areas.  Kong said in court that they had checked the 25^th Floor but did not notice any condition suggesting water seepage.  During the inspection of 2404 in February 2007, Yung found no seepage defect at the external walls and the walls adjoining the units adjacent to 2404 and 2304.  He concluded it was unlikely that water seeped from the roof, external walls, adjacent units or other common areas into 2304.  During trial, Leung suggested the possibility of seepage from the power ducts running into 2304 from outside or seepage through the bricks.  It suffices for me to say that these last minute suggestions were without any factual foundation.  Yung also explained and ruled out these possibilities.

25.Leung suggested the possibility of seepage originating from floors above 2404.  According to the reports and explanation by Yung in court, the leaking spots in 2304 were located far apart and the extensive damage was far more likely to have spread horizontally through the floor slab of 2404.  There was no vertical seepage track on vertical building elements in 2304 (like wall or service duct) which would have formed convenient passage of water from origin higher than 2404.  Further, since water seepage in building elements is continuous and traceable, it seldom skips a floor in between.  But there was no water seepage damage in 2404 as those in 2304.  During the inspection of 2404 in February 2007, Yung found no water dripping or seepage defect on the ceiling of the various rooms of 2404 like those appearing in 2304.  This reinforced his conclusion against the possibility of the source of seepage originating somehow from above but bypassing 2404 to 2304.  As to the detached plaster layer from the ceiling of the bathroom in 2404, Yung opined that this should be the result of the moisture of the bathroom rather than seepage from above.

Rain and atmospheric humidity

26.In his first report, Yung already recorded his observation that the seepage did not correspond to rainfall occurrence.  The rate was found to persist with no discernable seasonal or diurnal ebbing pattern.

27.Leung suggested the possibility of atmospheric humidity being the cause of the moisture and mould inside 2304.  This is hardly real, if not just defying common sense.  According to the evidence, the development of the condition inside 2304 clearly did not vary according to the time of the day or over the year whereas atmospheric humidity is bound to vary at least between the wet and the dry months.  The mould was localised whilst some parts of the unit were not affected at all.  Atmospheric humidity hardly has such localised effect inside a single unit.  Yung gave his expert evidence to similar effect.

Conclusion

28.Understandably, the floor of 2404 had never been opened up to confirm the suspected seepage from the water pipes concealed there.  However, the court is in a position to find by making inference from the available evidence.  Yung’s expert evidence both in his report and in court appeal to me as being sound and fair.  During cross-examination by Leung, both Yung and Kong of the manager were not shaken at all.  I accept and prefer their evidence to that of Leung or the so-called water pressure test results Leung relied on.  Yung’s conclusion that there was water seepage from the potable water pipes in the concrete floor slab and the gaps and cavities between the tiles and the concrete wall of the bathroom of 2404 is not only reasonable in the circumstances but the most likely causes of the seepage into 2304.

BREACH

29.The claim was framed in breach of the deed of mutual covenants (DMC), negligence and nuisance.

30.Various provisions of Section V of the DMC were pleaded.  The really relevant one among them is clause 2 of Part B of the section.  It provides that no owner will cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other owners and occupiers for the time being.  There could also be no doubt about the proximity between the 2 units to give rise to a duty of care between neighbours to found an action in negligence.  The Lau’s are also entitled to claim for physical damage and the undue interference with their comfortable and enjoyment of their unit caused by the nuisance: see Clerk & Lindsell on Tort (19^th ed) at para. 20-06.  If Leung knew or ought to know of the nuisance (which might not have been created by him), and the possibility of damage occurring in consequence was a real risk, he should have taken such positive action as a reasonable person in his position and circumstances would consider necessary to eliminate the nuisance: see Clerk & Lindsell at paras. 20-39 to 20-42 and the Chinese judgment of 張秀玲及另一人訴鄭禮莊, unrep., CACV 268/1998, 9 April 1999, per Woo J.  The question is whether Leung is liable on any or all of these counts.

31.Much was said about whether Leung has refused to co-operate in investigating the cause of seepage.  Whilst the contemporaneous correspondence does evidence such occasions, Leung may not be described as wholly un-cooperative at all times.  Insofar as liability (under the various causes of action) is concerned, the major issue is whether Leung has neglected to attend to the likelihood of seepage from the potable water pipe in his unit.  In my judgment, the answer is in the affirmative.  Leung has neglected the repeated suggestions by the manager since 2005 and the reports of the joint office of the government departments, particularly the WSD, as well as Yung thereafter.  I find this to be unreasonable.  Breach of duty is proved.  I find that against the background mentioned above, Leung knew or no doubt ought to know the likely source of the water seepage.  Nuisance and damage are proved and for which he is liable.

REMEDIES

32.Lau said that the water seepage apparently stopped during the latter half of 2007.  He said, and Kong confirmed, that some renovation work was carried out inside 2404 in October 2007.  Miss Wong for the Lau’s submitted that an injunction to restrain Leung from causing or allowing such water seepage to 2304 is still prayed for, in view of Leung’s continued denial of liability and the unknown prospect of the same recommencing.  Considering the current moment in isolation, one may doubt whether further seepage is imminent or likely to recur.  But I should take into account all the circumstances, past and present.  The seepage once stopped towards the end of 2006 but did recur after a short while.  Similar situation happened by mid-July 2007.  It is not entirely clear whether the stoppage of the seepage had anything to do with the renovation in 2404 afterwards.  On balance, equity still calls for such an injunctive relief for the protection of the Lau’s.

33.Regarding damages, the Lau’s relied on the evidence of Leung Wai Ming (W M Leung) and his quotation for the repair required to 2304.  W M Leung said in court that he was responsible for the interior decoration and fittings of 2304 for the Lau’s back in 2002.  In 2006 and 2007, he visited 2304 at the request of Lau to assess the necessary repair to the unit.  This led to his quotation in September 2007.  The total renovation cost is HK$68,300.  He explained the items in court.  His explanation was not really challenged.  Also in view of the condition of the affected parts of 2304 depicted by the photographs and the reasonable need to blend in the repaired parts with the appearance of the rest of the unit, I accept that the suggested renovation and its quoted cost are not more than reasonable.

34.The Lau’s also claims general damages for the discomfort, inconvenience and disturbance.  Instances pleaded, and explained by Lau in his statement, included the need to attend to the dripping water for a period of time, moving out of the unit for over a month out of their concern about the health of the new born baby, the baby’s suffering after their return to the unit and the bad condition of the bedroom in which they had to sleep in.  I accept that.  Miss Wong for the Lau’s referred to the recent case of Cheng Chi Wing & Anor v Ho Shu Wah & Anor, DCCJ 2370/2005, 27 July 2007.  The learned Judge awarded HK$45,000 for the inconvenience and nuisance suffered by the plaintiffs (see paras.23 and 31 of the judgment).  For such intangible loss, there is no real formula of mathematical assessment: see Clerk & Lindsell at para.20-29.  Doing my best, I would make an award of HK$30,000 under this head.

ORDER

35.I grant an injunction restraining Leung by himself, his tenants, licensees, servants, agents or otherwise from causing, permitting, allowing or suffering water to be leaked, seeped and discharged from his property (2404) into the Lau’s property (2304).

36.I also order that Leung do pay the Lau’s damages in the sum of HK$98,300.  Considering the circumstances of this case, I exercise my discretion to award interest on HK$68,300 at half judgment rate from the date of writ until today and interest thereafter on HK$98,300 at the judgment rate until full payment.

37.I make a nisi order that Leung do pay the Lau’s their costs of this action, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  This costs order shall become absolute in the absence of appointment to argue costs in 14 days.

REMARK

38.Pleadings in this case are in English and so are the expert reports and counsel’s submissions.  For the benefit of Leung who now acts in person, parts of the expert reports have been translated and counsel’s submissions have been interpreted into Chinese to him.  I also allowed the proceedings to be conducted in Chinese.  I chose to hand down this judgment in English.  Court interpreter’s assistance in perusing this judgment may be arranged, if requested by Leung.

Representation:

Miss Abigail Wong instructed by Messr S K Lam, Alfred Chan & Co for the Plaintiffs

The Defendant appearing in person, present